Everything You Ever Wanted To Know About Employment Law

September 18, 2013
Everything You Ever Wanted to Know About
(But Didn’t Want to Pay a Lawyer to Ask)
Mark Toth
Chief Legal Officer – North America

SMARTEST
HR
PERSON
IN THE
UNIVERSE
CONTEST
WHAT‟S
NEW?
STAY OUT
OF JAIL
TO DO
LIST
SING-A-
LONG
SONG
187%
FREE
TOOL
BOX
Stay Out Of Jail

Official Disclaimer
The presentation you are about to witness is intended
as general commentary only and should not be relied
upon or construed as legal advice. The views
expressed are solely those of the presenter
and not of ManpowerGroup.
Failure to stay awake for the entirety of this
presentation could result in long-lasting side-effects,
including litigation headaches, recurring nightmares
and/or severe gastrointestinal discomfort from having
to spend too much time with lawyers.
Please consult with your own HR and Legal
departments before making any major policy and/or
procedure changes.
You have been warned.

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World’s Most Fabulous
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LIBRARY
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Smartest HR Person in the Universe CONTEST

ManpowerGroup | September 18, 2013 9
What percentage of employees
would fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%

What percentage of employees
would fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
Source: Monster.com

What percentage of your employees
are thinking about leaving your
company right now?
A. 26%
B. 46%
C. 66%
D. 86%

What percentage of your employees
are thinking about leaving your
company right now?
A. 26%
B. 46%
C. 66%
D. 86%
Source: Right Management

$300B
1/25 bosses
= psycho
32%
workweek
increase
62%
workload
increase
33%
chronically
overworked
80%
sedentary
Sources: Dr. Paul Babiak, Pennington Biomedical Research Center,
Kronos, Families & Work Institute, Harris Interactive

The Bottom Line:
Employees are really very
extremely incredibly
disgruntled.

The Goal:
Get your employees gruntled.

If you had to boil all of
employment law down
to one word, what
would it be?

The Supremes Rule
Retaliation Standard Toughened
Supervisor Definition Narrowed
Class Action Waivers Upheld
Class Action Fairness Reinforced
DMV Plaintiff Recruitment Curtailed

What Else is New?
New FMLA
New HIPAA Rule
New EEOC ADA FAQs
New I-9s
GINA Is Real

What Else Else is New?
DOMA, FMLA & Same-sex Spouses
Online Whistleblower Complaints
Micro-units OK
Federal Contract Compliance Manual
Non-compete Suit Explosion

True or False?
Employers win more employment
lawsuits than they lose.
A. True
B. False

True or False?
Employers win more employment
lawsuits than they lose.
A. True
B. False
Source: Jury Verdict Research

49%

What Are Your Odds?
SEX
36%
ALL
49%
DISABILITY
56%
AGE
60%
RACE
50%

What‟s the #1 most common
discrimination claim?
A. Age
B. Disability
C. Race
D. Retaliation
E. Sex

Hiring
Vulnerable
Workers
ADA
LGBT
Access to
Legal
System
Pregnancy
Harassment
EEOC

Everything You Ever Wanted to Know About Employment Law
© 2011 ManpowerGroup 32
How Much Will YOU Pay?
$1M+
Big pattern
+/or reallllllly
horrible facts
1%
$100K-$1M
Pattern +/or
really horrible
facts
39%
$51-$100K
1 plaintiff +
horrible facts
28%32%
Sources: EEOC, Jury Verdict Research
$1M+
Big pattern +/or
reeeeeeeally
horrible facts
$100K-$1M
Pattern +/or
really horrible facts
$51-$100K
1 plaintiff +
horrible facts
$0-$50K
1 plaintiff +
no horrible facts

Ignore
the law
Ignore your
policies
Investigate
+ document
poorly
Discipline
inconsistently
Lie
Get Plaintiffs‟ Lawyers to LOVE You

Which of the following is most likely to
result in a humongous class action?
A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage and hour violations
E. Doing business in California

Avoid the WAGE & HOUR abyss

What celebrity was
recently sued for a
plethora of wage and
hour violations?

LADY
GAGA

OT Classifications
Pre-shift “Work”
Independent contractor classifications
Work @ home
California, California, California
FLSA Hot Spots

1. On-call time 6. Travel during work hours
2. Commute time 7. Changing in/out uniform
3. Wait time 8. Donning/doffing safety gear
4. Meals < 30 9. Walking from changing area
5. Travel non-work hours 10. Rest > 30

The FMLA in Plain English

Wage and Hour Solutions
Know the Law
Train managers and employees on time-keeping
Complaint system: investigate promptly & thoroughly
Audit classifications and records
Address any discrepancies immediately

NLRB Nervousness

True or False?
The NLRB only has jurisdiction over
unionized companies.
A. True
B. False

True or False?
Union membership declined more in
President Obama‟s first term than in
President Bush‟s two terms combined.
A. True
B. False

True or False?
Union membership declined more in
President Obama‟s first term than in
President Bush‟s two terms combined.
A. True
B. False
Source: Bureau of Labor Statistics

11.2%
Source: Bureau of Labor Statistics

Every Social Media Case On 1 Slide
“Protected concerted activity”
Union or non-union
> 1
Wages / work conditions
Same in cyberspace

Get SOCIAL MEDIA now

True or False?
None of the laws that apply
in the real world apply in the
social media universe and
therefore I can completely
lose my mind and absolutely
anything goes.

True or False?
Absolutely False.

Same Old Test
job-
related
job-
related
job-
related

Latest Stats: Employees
62% “couldn’t live without the Internet”
53% would rather lose nose than Facebook
48% would swap pay for SM access
29% access X-rated sites
28% have posted work-related photos
22% have posted/tweeted about a co-worker
21% would turn down a job if unsocial
Sources: Cisco, Pew Research Center, McCann WorldGroup
Nielsen, DLA Piper

How do those about to enter the
workforce rank the following in order
of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities

How do those about to enter the
workforce rank the following in order
of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
Source: Cisco

What percentage of men have viewed
porn at work?
A. 0
B. 2
C. 17
D. 25
E. 118

What percentage of men have viewed
porn at work?
A. 0
B. 2
C. 17
D. 25
E. 118
Source: Harris Interactive

1 out of every ___ employees has
forwarded a sex-related email at work?
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1

1 out of every ___ employees has
forwarded a sex-related email at work?
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1
Source: Harris Interactive

Latest Stats: Employers
73% do no SM training
68% monitor internet activity
58% say SM benefits outweigh risks
56% block access to some sites
45% use SM to screen
31% have disciplined for postings about employer
25% have disciplined for excessive SM use
19% ban SM
Sources: SHRM, Clearswift, DLA Piper, Cisco

Which of the following is NOT an actual
employee tweet?
A. “Hate my job!! I want to tell my bosses how dumb they
are and how meaningless this job is, then quit, and be
happy!”
B. “So my job was to test all the food at the new restaurant,
can I just say, ughew. I’m going to taco bell.”
C. “Smoking weed at work is so [expletive] great”
D. “I’m really bummed that I’m working today, I asked off so
I could study but my boss is a [expletive] who can’t read.”
E. “I am working really hard right now and feel very
fortunate to have a job.”

YOU be the judge
Who wins?
A. Employer
B. Employee
C. Neither

Who wins?
A. Employer
B. Employee
C. Neither
YOU be the judge

ADA, FMLA, HIPAA, OSHA … YIKES!

Which of the following increases your
chances of getting sued under GINA?
A. Asking about family medical history
B. Terminating an employee after a positive genetic test
C. Commingling medical and other info
D. Not adopting the EEOC’s safe harbor language
E. Discriminating against employees named Gina
F. All of the above except “E”

What‟s the #1 most headache-inducing
law for employers right now?

“My dog had a nervous breakdown.”
“My toe was stuck in a faucet.”
“I was upset after watching The Hunger Games.”
“I was bitten by a bird.."
“I was sick from reading too much.”
“My sobriety tool kept my car from starting.”
“My hair turned orange.”
“I forgot you hired me.”
“I was suffering from a broken heart.”
2012‟s
MOSTCREATIVEEXCUSESFORMISSINGWORK
Source: CareerBuilder

FMLA in Plain English

ADA How NOT To
Have an
inflexible
leave policy
Make snap
judgments
Don‟t
interact
Don‟t
accommodate
Put dumb
stuff in
writing

Discuss Discuss
Discuss Discuss

Bob is normally a responsible, quiet employee.
One day, however, he shows up two hours late
and acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legs
and touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talking
gibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?
A. Fire him for inappropriate workplace behavior
B. Do a crazy monkey arm dance in his honor until he returns
C. Drug test him
D. Give him a chance to explain his behavior

An employee comes into your office at 4:59 on a Friday
and informs you that he suffers from multiple
medical conditions, including “work-induced narcolepsy,”
“spontaneous combustion syndrome” and
“episodic cubicle-confinement hyper-grumpiness.”
He demands several accommodations, including:
(1) a portable IV hooked up to an espresso machine,
(2) a fire extinguisher mounted to his head;
(3) three-and-a-half weeks off each month
and (4) your office.
If you have time to make only one call,
to whom should it be?

JOB
ACCOMMODATION
NETWORK
jan.wvu.edu
800-526-7234

Many employment disputes can be
traced back to a lack of leadership.
According to research, what‟s the #1
most important leadership trait?
A. Charisma
B. Humility
C. Kindness
D. Proactivity
E. Results-orientation
F. Height
G. Coordinating accessories
H. Smooth dance moves

After a batch of frivolous complaints against execs
that resulted in several of them hating your guts
because you conducted the investigations, you
institute a policy calling for brief “reviews” rather
than full-scale investigations whenever a complaint
comes in against an exec. What‟s most likely to
happen next?
A. Nothing: research shows that 97% of all complaints are bogus
B. You get a big raise and promotion for sparing execs the hassle
and embarrassment of getting investigated
C. You get fired after the company pays a big settlement based in
part on your failure to conduct an appropriate investigation

Open 24 / 7 / 365.25
World’s Most
Fabulous
Employment Law
LIBRARY

Go To Prison Soon Plan
Don„t open the Tool Box
Don‟t visit the EL Library
Don‟t sign up for Mark‟s alerts
Don‟t follow Mark on Twitter
Don‟t visit the Blawg every 0.3 seconds

Prison-free Plan
KNOW THE LAW
INVESTIGATE & DOCUMENT ALL CLAIMS
BEWARE RETALIATION
LOVE YOUR EMPLOYEES
FOCUS ON KEY PRIORITIES
Known violations
Systemic issues
Wage & hour
EEOC priorities

ManpowerGroup | Halloween 2012
Employment Law SING-A-LONG

Employment law can be easy
If you listen you surely won‟t fail
We wrote you this song
So please sing along
If you don‟t, you could end up in jail

Don‟t put things off til tomorrow
Yes investigate right away
Don‟ procrastinate
And don‟t retaliate
Or the more you will have to pay

Remember this song
And you‟ll never go wrong
Yes we wish you the best on your journeys
You‟ll stay out of court
And you won‟t have to pay no attorneys

Technology may give you headaches
And the feds they may knock on your door
But if you prepare
Be consistent and fair
They won‟t ever bug you no more

If your brain‟s too full to remember
All the stuff we just covered above
There‟s one little word
That sums up what you heard
Love love love love love love LOVE!

So, remember this song
And you‟ll never go wrong
Yes we wish you the best on your journeys
You‟ll stay out of court
And you won‟t have to pay no attorneys

Everything You Ever Wanted To Know About Employment Law

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